WorkCover is a statutory scheme that allows workers to receive benefits where they have suffered an injury in the course of employment. If you have been injured at work you may be entitled to compensation.
There are two paths for WorkCover claims; No-Fault and Fault. Below is information on both types of WorkCover claims along with the benefits of engaging a WorkCover lawyer if you have been injured at work.
No-Fault WorkCover Claims
There are three types of benefits that can be claimed under no-fault:
1. Weekly Payments
To obtain weekly payments from your WorkCover insurer, your claim must be accepted. You also need to obtain ongoing certificates of capacity from your treating doctor, and forward these to the WorkCover insurer. Weekly payments are calculated as a percentage of pre-injury average weekly earnings (PIAWE) up to a maximum payment of $2,380. PIAWE is normally your average weekly earnings over the 12 months before your injury.
Regularly paid overtime or shift allowances will be included in the calculation, but only for the first 52 weeks of incapacity.
- For the first 13 weeks, you get 95% of your PIAWE. These 13 weeks do not have to be consecutive.
- After 13 weeks, entitlements are reduced to 80% of PIAWE up to a maximum payment of $2,380.
- If you can return to work but are losing income (for instance, working part-time but before you worked full-time), then the insurer can pay partial weekly payments, usually making up the difference between 80% of your PIAWE and 80% of what you are earning.
- After 130 weeks, weekly payments may be terminated by the WorkCover insurer unless you have no capacity for any suitable work and the situation is likely to continue indefinitely. In that case, you are entitled to continue receiving 80% of PIAWE up to a maximum payment of $2,380.
- WorkCover insurers may pay top-up payments if you have returned to work but are still losing income after 130 weeks if you undergo surgery after 130 weeks, but this is a limited circumstance.
2. Medical and Related Expenses
For the first 52 weeks after your injury, the WorkCover insurer must pay your reasonable medical expenses. If you receive weekly payments, that period will be extended until 52 weeks after your last weekly payment.
On the expiry of the 52 weeks, medical expenses can only be claimed if:
- Your health or ability to undertake basic daily activities would significantly deteriorate without the treatment
- You require surgery
- You are working but would not be able to stay at work without the treatment in question
- You need a prosthesis
- You have been assessed as having a whole-person impairment of 30% or more.
Expenses that can be paid include:
- Appointments with doctors and other health professionals
- Medication
- Scans
- Travel related to medical treatment
- Home help
- Home modifications
- Rehabilitation assistance
- Retraining courses approved in advance
The above is all based on if the treatment is necessary and the cost is reasonable.
3. Permanent Impairment Benefit or Lump Sum Claims
A permanent impairment benefit is a modest lump sum that can be claimed if you have suffered certain types of permanent impairment arising from your workplace injury. It does not compensate for pain and suffering or loss of earning capacity, therefore it will not affect entitlement to weekly payments or medical expenses.
A permanent impairment claim can only be brought once, so all injuries and effects of your injuries must be known before the application is lodged and finalised. Injuries must be permanent, stable and satisfy a percentage test based on a whole person impairment rating. Applications for lump sum claims cannot be made until 12 months post-injury.
The threshold depends upon the nature of the injury, assessed according to a medical handbook called the American Medical Association Guides to the Assessment of Permanent Impairment, 4th edition (the AMA guides). Percentages are as follows:
- For musculoskeletal injuries (those involving muscles or bones), you must establish that your level of whole-person impairment is 5% or more.
- For other physical injuries (for example scarring), you must establish a whole-person impairment of 10% or more.
- For psychiatric injuries, you must have a whole-person impairment of 30% or more. This is assessed following additional guidelines designed by Victorian psychiatrists.
- If you suffer a total loss of a body part or a sense, then you may be entitled to lump sum compensation without having to meet the 5% or 10% of threshold.
Fault WorkCover Claims
Negligence, or a failure to take reasonable precautions to guard against a reasonably foreseeable
risk of injury, is the main basis of fault in WorkCover claims. The employer is usually alleged to have been negligent, but it may also be a third party such as the occupier of premises or a manufacturer.
Employers have duties under legislation such as the Occupational Health & Safety Act and Regulations, which often give workers another basis upon which to allege fault. If the employer is at fault but the worker contributed to their injury by, for instance, not following safety procedures or wearing protective equipment, damages will be reduced to the extent the worker is found to have contributed.
To be entitled to a Common Law claim for damages, you need to show fault on the part of your employer or another entity such as the occupier/owner of the premises where you got hurt. There are two elements to a Common Law claim for damages or negligence claims:
- A “serious injury” as defined by the WorkCover legislation; and
- That the injury was caused by negligence on the part of your employer and/or another entity such as the owner/occupier of the premises
An application must be made to the Victorian WorkCover Authority (VWA) seeking a ‘serious injury’ certificate. If granted, you may proceed with a claim for damages. Permission can be given to pursue a claim for damages for pain and suffering only or for pain and suffering and loss of earnings/ loss of earning capacity. If the VWA does not grant a certificate, an appeal can be made to the County Court. If a judge accepts that you are seriously injured, you can proceed as if the VWA had granted a certificate.
There are certain hurdles to clear to be granted a serious injury certificate – which is where having a WorkCover lawyer knowledgeable in this area can be extremely beneficial. These hurdles include:
- The ‘lifestyle’ test: an overall assessment of the effects of the injury on your quality of life, including the need for medical treatment, impacts on hobbies, home life and relationships, and impacted ability to work and pursue your career
- Loss of earning capacity: if despite your best efforts to retrain and rehabilitate, your injury has caused a permanent loss of earning capacity of at least 40%
- If you have been assessed as suffering an impairment of 30% or more under the AMA guides. This is a high bar.
It is important to keep in mind that time limits apply for damages claims. Typically you have six years from the date of injury to lodge a serious injury application with the Victorian WorkCover Authority. After that time, your right to claim damages may expire at Common Law. Serious injury applications take time to prepare, so you should act as soon as possible to avoid missing the time limit.
Rehabilitation and Returning to Work
You have a responsibility to make every reasonable effort to return to work in suitable employment, to participate in an occupational rehabilitation program or return to work plan and participate in medical assessments arranged by the WorkCover insurer.
Here is what our WorkCover lawyers recommend to keep track as you meet return to-work obligations:
- Keep records and receipts related to the medical treatment you receive
- Obtain prior approval from the WorkCover insurer before incurring significant medical or related expenses such as surgery, retraining, and home help
- Ensure invoices or receipts for medical and like expenses are forwarded to the WorkCover insurer for payment as you get them
Your employer and the WorkCover insurer also have obligations to provide suitable rehabilitation services and assistance in returning to work. If you can work and have received less than 12 months of weekly payments, your employer must provide suitable employment if possible. If you are no longer incapacitated for work and have received less than 12 months of weekly payments, your employer must provide employment in a position that is the same as, or equivalent to, the position which you held before the injury, if possible.
Challenging WorkCover Insurer Decisions
You can challenge decisions a WorkCover insurer makes that you disagree with at the Workplace
Injury Commission. Examples of challengeable decisions include:
- Rejection of a WorkCover claim
- Restriction or termination of medical expenses generally or particular types of treatment
- Termination or reduction of weekly payments
- Return to work or rehabilitation planning
- Failures by the insurer to make decisions when asked
Referrals to conciliation must be made within 60 days of the WorkCover insurer’s decision, but extensions may be available in some circumstances. WorkCover lawyers are not usually allowed to attend conciliation, but Union Assist or WorkCover Assist can be arranged to represent you at a conciliation conference, and we will still provide advice about the process and your options.
Worker’s Compensation Independent Review Service (WCIRS)
WCIRS provides a free and impartial review of certain disputed reviewable decisions that do not resolve in conciliation. An independent review of a reviewable decision can be requested after it has been through conciliation at the Workplace Injury Commission and where a Genuine Dispute Outcome Certificate has been issued. It must be:
- Within 2 years of the Genuine Dispute Outcome Certificate being issued; and
- Before a court listing the matter for a final hearing or referral to the Medical Panel
What decisions are reviewable?
- An agent’s decision not to accept a worker’s primary claim;
- A decision to stop, suspend, or refuse to pay weekly payments;
- A decision about the calculation of weekly payments;
- A decision about whether the worker has or does not have a current work capacity;
- A decision relating to medical and like services;
- A decision about the calculation of weekly payments;
- A decision about whether the worker has or does not have a current work capacity.
Which decisions are not reviewable?
- No Genuine Dispute certificate;
- A worker’s degree of impairment;
- Relating to the death of a worker or their dependent;
- A Medical Panel decision;
- A decision that has been settled by agreement between the agent and worker;
- If a decision has been made by a self-insurer; and
- Relating to Serious Injury or Common Law damages.
We can assist you to make an application to WCIRS for a reviewable decision
How Can A WorkCover Lawyer Help You?
The WorkCover scheme is a minefield. Our WorkCover lawyers can assist with both fault and no-fault benefits and our No Win, No Fee policy for those claiming compensation for injury or illness means that most personal injury claims have no upfront fees.
Our WorkCover lawyers’ focus is squarely on obtaining a lump sum payout for your pain and suffering and pecuniary loss. With an in-depth knowledge of the laws relating to personal injury, we will ensure your claim includes all compensation you are entitled to, and will help to build a strong case for a successful outcome. We will do everything to maximise your compensation while reducing your stress levels.
Speak With An Experienced WorkCover Lawyer
Call 1800 369 888 or fill out our online enquiry form and we will arrange an appointment for you to speak with one of our WorkCover lawyers. Coping with an injury is enough, let us take care of the rest.
For over 30 years Carbone Lawyers has been achieving successful outcomes for our clients. We are renowned for our Personal Injury Law expertise and have a team of highly experienced and skilled WorkCover lawyers driven to ensure you get the compensation you are entitled to.